Document Content

DECREE

On issuance of legal opinion

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Pursuant to the December 25, 2001 Law on Organization of the Government;

At the proposal of the Minister of Justice;

The Government promulgates the Decree on issuance of legal opinion.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application

1. This Decree provides for the principles and scope of, and order and procedures for issuance of legal opinion, basic contents of legal opinion issued by the Ministry of Justice, and responsibilities of related agencies and organizations.

2. This Decree applies to:

a/ The Ministry of Justice;

b/ Agencies and organizations requesting issuance of legal opinion;

c/ Agencies and organizations involved in the issuance of legal opinion.

Article 2. Interpretation of terms

1. Legal opinion referred to in this Decree means a document on the lawfulness of a document that needs legal opinion, which is issued by the Ministry of Justice.

2. Vietnamese party means the State, the Government or a state agency of Vietnam which is a party in the document that needs legal opinion.

3. Document that needs legal opinion means a document eligible for issuance of legal opinion prescribed in Article 5 of this Decree.

Article 3. Principles of issuance of legal opinion

1. Legal opinion shall be issued on the basis of and in accordance with Vietnamese law at the time of issuance.

2. Legal opinion shall be issued after the document that needs legal opinion is signed, approved, ratified or promulgated in accordance with law.

3. Legal opinion may not add, reduce or change rights and obligations of parties prescribed in the document that needs legal opinion or prescribed in regulations effective at the time of issuance.

Article 4. Validity of legal opinion

Legal opinion is an independent expert opinion on legal issues of the document that needs legal opinion.

Article 5. Documents eligible for issuance of legal opinion

The Ministry of Justice shall consider issuing legal opinion to the following documents in which the State, the Government or a state agency is a party:

1. Treaties on official development assistance (ODA) loans and concessional loans; and other relevant documents in which the State, the Government or a state agency is a party (if any).

2. Loan agreements in the name of the State, the Government or the Ministry of Finance.

3. Government guarantee documents for government-guaranteed loans or documents on issuance of government-guaranteed international bonds.

4. Agreements on issuance of international bonds of the Government.

5. Investment projects in the form of public-private partnership (PPP) (including project contract, government guarantee document (if any), land lease contract and other documents related to the projects in which the State, the Government or a state agency is a party).

6. Other special cases as assigned by the Government or the Prime Minister.

Article 6. Agencies and organizations entitled to request issuance of legal opinion

1. State agencies in charge of negotiating and signing treaties on ODA loans and concessional loans; loan agreements of the State; or project contracts in the form of PPP.

2. Guaranteed organizations with regard to government guarantee documents for government-guaranteed loans or documents on issuance of government-guaranteed bonds.

Article 7. Conditions for issuance of legal opinion

The Ministry of Justice shall issue legal opinion if the conditions below are fully satisfied:

1. The document that needs legal opinion is eligible for issuance of legal opinion as prescribed in Article 5 of this Decree.

2. There is a complete dossier of request for legal opinion as prescribed in Article 12 of this Decree and it is clarified or modified at the request of the Ministry of Justice under Article 14 of this Decree.

3. The negotiation, signing and approval or ratification of the document that needs legal opinion have been carried out within the competence and in accordance with the order and procedures prescribed by Vietnamese law.

Article 8. Rejection of issuance of legal opinion

The Ministry of Justice shall reject the issuance of legal opinion in the following cases:

1. The dossier of request for legal opinion fails to satisfy the conditions and dossier for issuance prescribed in Articles 7 and 12 of this Decree.

2. The dossier of request for legal opinion is not modified or clarified under Clause 2, Article 13, or Article 14, of this Decree.

Article 9. Form and language of legal opinion

Legal opinion shall be issued in written form in Vietnamese or English at the request of the requesting agency or organization.

Article 10. Basic contents of legal opinion

1. Basic contents of legal opinion include:

a/ Conditions, situation and necessary presumption for clarifying the purpose and scope of the legal opinion;

b/ Assessment of the legal status of the Vietnamese party in the signing or issuance of the document;

c/ Assessment of the competence of the Vietnamese party to sign or issue the document;

d/ Assessment of compliance with Vietnamese law on procedures for negotiation, signing and issuance of documents;

dd/ Use purpose of the legal opinion and provision of the legal opinion for other organizations and individuals.

2. In addition to the above contents, depending on each specific case, legal opinion may have other contents which must not contravene the principles of issuance of legal opinion prescribed in Article 3 of this Decree.

3. The contents of legal opinion must not assess facts, events or contents not directly related to Vietnamese law.

Chapter II

ORDER AND PROCEDURES FOR ISSUANCE OF LEGAL OPINION

Article 11. Request for issuance of legal opinion

After signing, approving or ratifying a document that needs legal opinion, the agency or organization may send 01 (one) set of dossier of request for issuance of legal opinion as prescribed in Article 12 of this Decree to the Ministry of Justice.

Article 12. Dossier of request for issuance of legal opinion

1. A dossier of request for issuance of legal opinion for a treaty on ODA loans or concessional loans must comprise:

a/ A written request (the original) for issuance of legal opinion addressed to the Ministry of Justice;

b/ The signed treaty (the original or a copy);

c/ The written approval (the original or a copy) of the policy on negotiation and signing of the treaty on ODA loans or concessional loans;

d/ The written authorization (the original or a copy) (if any) for negotiation and signing of the treaty;

dd/ The written approval (the original or a copy) (if any) of the Government, for treaties of governmental level, or the written ratification of the President or the National Assembly, for treaties of state or governmental level;

e/ The written assessment (the original) of the lawfulness of the document that needs legal opinion, issued by the requesting agency or organization;

g/ Other necessary documents for the issuance of legal opinion;

h/ The Vietnamese translations of the above documents if they are made in a foreign language.

2. A dossier of request for issuance of legal opinion for loan agreements in the name of the State, the Government, or the Ministry of Finance must comprise:

a/ A written request (the original) for issuance of legal opinion addressed to the Ministry of Justice;

b/ The loan agreement (the original or a copy) in the name of the State, the Government, or the Ministry of Finance;

c/ The written authorization (the original or a copy) (if any) for negotiation and signing of the loan agreement;

d/ The written approval (the original or a copy) of the President, the Government or the Prime Minister of the signing of the loan agreement;

dd/ The written assessment (the original) of the lawfulness of the document that needs legal opinion, issued by the requesting agency or organization;

e/ Other necessary documents for issuance of legal opinion;

g/ The Vietnamese translations of the above documents if they are made in a foreign language.

3. A dossier of request for issuance of legal opinion for a government guarantee document for government-guaranteed loans or a document on issuance of government-guaranteed international bonds must comprise:

a/ A written request (the original) for issuance of legal opinion addressed to the Ministry of Justice;

b/ The written assessment (the original) of the lawfulness of the document that needs legal opinion, issued by the requesting agency or organization;

c/ The government guarantee document (the original or a copy);

d/ The written approval (the original or a copy) of the policy on government guarantee, issued by the Government or the Prime Minister;

dd/ The document (the original or a copy) authorizing, or proving the competence of, the person signing the guarantee document;

e/ Other necessary documents for the issuance of legal opinion;

g/ The Vietnamese translations of the above documents if they are made in a foreign language.

4. A dossier of request for issuance of legal opinion for an agreement on issuance of international bonds of the Government must comprise:

a/ A written request (the original) for issuance of legal opinion addressed to the Ministry of Justice;

b/ The agreement (the original or a copy) on issuance of bonds;

c/ The written approval (the original or a copy) for the project for issuance of international bonds of the Government;

d/ The document (the original or a copy) authorizing, or proving the competence of, the person signing the agreement on issuance of international bonds;

dd/ The written assessment (the original) of the lawfulness of the document that needs legal opinion, issued by the requesting agency or organization;

e/ Other necessary documents for issuance of legal opinion;

g/ The Vietnamese translations of the above documents, if they are made in a foreign language.

5. A dossier of request for issuance of legal opinion for the investment project in the form of PPP must comprise:

a/ A written request (the original) for issuance of legal opinion sent to the Ministry of Justice;

b/ The project contract (the original or a copy);

c/ The government guarantee and commitment (the original or a copy) (if any);

d/ The written approval (the original or a copy) of the project contract (if any) and guarantee policy of the competent agency;

dd/ The written authorization (the original or a copy) for signing of the government guarantee and commitment;

e/ Other documents (the originals or copies) in which the State, the Government or a state agency is a party;

g/ The written assessment (the original) of the lawfulness of the document that needs legal opinion, issued by the requesting agency or organization;

h/ Other necessary documents for the issuance of legal opinion;

i/ The Vietnamese translations of the above documents, if they are made in a foreign language.

6. A dossier of request for legal opinion for other documents under assignment of the Government or the Prime Minister must comprise:

a/ A written request (the original) for legal opinion addressed to the Ministry of Justice;

b/ The document that needs legal opinion (the original or a copy);

c/ The written assignment of the Government or the Prime Minister (the original);

d/ Documentary proof (the original or a copy) of the process of negotiation and signing of the document that needs legal opinion in accordance with law;

dd/ The written authorization as prescribed by law (the original or a copy) (if any);

e/ The written assessment (the original) of the lawfulness of the document that needs legal opinion, issued by the requesting agency or organization;

g/ Other necessary documents on issuance of legal opinion;

h/ The Vietnamese translations of the aforesaid documents, if they are made in a foreign language.

Article 13. Receipt and processing of dossiers of request for issuance of legal opinion

1. The Ministry of Justice shall receive and verify dossiers of request for issuance of legal opinion as prescribed in Article 12 of this Decree.

If a dossier of request for issuance of legal opinion does not meet requirements as prescribed in Article 12 of this Decree, the Ministry of Justice shall request the applicant to complete the dossier within 5 working days after receiving it.

2. The requesting agency or organization shall complete the dossier within 5 working days after receiving the written request for completion from the Ministry of Justice.

Article 14. Modification and clarification of dossiers of request for issuance of legal opinion

1. If the content of the dossier of request for issuance of legal opinion is not compliant with the law effective at the time the dossier is submitted, the Ministry of Justice shall send to the requesting agency or organization a written request for modifying and clarifying the dossier within 5 working days from the date it receives the complete dossier.

If the content of the dossier of request for issuance of legal opinion is complicated, the deadline for modifying or clarifying the dossier may be extended up to 15 days from the date of receipt of the complete dossier.

2. The requesting agency or organization shall study, clarify and modify the dossier at the request of the Ministry of Justice within 15 days after receiving the request from the Ministry of Justice. If wishing to extend the above time limit, the requesting agency or organization shall send a written request therefor and obtain a written consent from the Ministry of Justice.

Article 15. Time limits for issuance of legal opinion

1. The Ministry of Justice shall issue the legal opinion within 15 days regarding treaties on ODA loans and concessional loans (if any) or 30 days regarding other cases, counting from the date it receives a valid dossier as prescribed in this Decree.

2. A valid dossier means a dossier comprising all documents specified in Article 12 of this Decree that has been clarified and modified at the request of the Ministry of Justice as prescribed in Article 14 of this Decree.

3. If the content of the legal opinion is complicated, the time limit for issuance of legal opinion may be longer but must not exceed 60 days from the date of receipt of the valid dossier.

Article 16. Clarification of contents of legal opinion

1. In case the contents of legal opinion need clarifying, the requesting agency or organization shall send a written request for clarification to the Ministry of Justice.

2. Within 15 days after receiving the written request, the Ministry of Justice shall send a written reply clarifying the legal opinion to the requesting agency or organization.

Article 17. Modification of legal opinion

1. The agency or organization prescribed in Article 6 of this Decree is entitled to request modification of the issued legal opinion in case the document that is issued the legal opinion was modified.

2. The agency or organization shall send 1 (one) dossier of request for issuance of legal opinion as prescribed in Article 12 of this Decree to the Ministry of Justice, specifying the content to be modified and reason for modification.

3. The Ministry of Justice shall receive the request, then decide to issue or refuse to issue a modified legal opinion within 30 days after receiving the valid dossier. If refusing to issue a modified legal opinion, the Ministry of Justice shall issue a written reply clearly stating the reason to the requesting agency or organization.

Article 18. Use of legal opinion

1. The requesting agency or organization may only use the legal opinion for the transaction mentioned in the document that is issued the legal opinion.

2. The requesting agency or organization may only provide the legal opinion to the individuals or organizations mentioned in the legal opinion, or provide the legal opinion to others with the written consent of the Ministry of Justice.

Chapter III

RESPONSIBILITIES OF AGENCIES AND ORGANIZATIONS DURING THE PROCESS OF ISSUANCE OF LEGAL OPINION

Article 19. Responsibilities of the requesting agency or organization

1. To promptly provide the Ministry of Justice with sufficient information and documents related to the document that needs legal opinion at the latter’s request as prescribed in this Decree.

2. To ensure the accuracy, lawfulness and authenticity of the dossier of request for issuance of legal opinion sent to the Ministry of Justice.

3. If failing to promptly provide sufficient information and documents related to the document that needs legal opinion at the request of the Ministry of Justice, to send an official notice thereof to the Ministry of Justice.

4. If providing inaccurate, insufficient, unlawful or untruthful information and documents, to take full responsibility for the consequence of such provision.

Article 20. Responsibilities of the Ministry of Justice for considering requests for issuance of legal opinion

1. To ensure that the content of the legal opinion is compliant with regulations effective at the time the legal opinion is issued.

2. If refusing to issue legal opinion, to send a notice thereof clearly stating the reason to the requesting agency or organization.

Article 21. Responsibility for coordination with the Ministry of Justice in handling requests for issuance of legal opinion

If necessary, at the request of the Ministry of Justice, related ministries, ministerial-level agencies and organizations shall join in considering the issuance of legal opinion.

Chapter IV

ORGANIZATION OF IMPLEMENTATION

Article 22. Organization of implementation

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of People’s Committees of provinces and centrally run cities, and related organizations and individuals shall implement this Decree.

Article 23. Effect

1. This Decree takes effect on July 15, 2015.

2. Dossiers of request for issuance of legal opinions sent to the Ministry of Justice before the effective date of this Decree shall still be settled under the Government’s Decree No. 38/2013/ND-CP of April 23, 2013, on management and use of official development assistance and concessional loans from donors; Decree No. 01/2011/ND-CP of January 5, 2011, on issuance of government bonds, government-guaranteed bonds and municipal bonds; Decree No. 108/2009/ND-CP of November 27, 2009, on investment under build-operate-transfer, build-transfer-operate or build-transfer contract; Decree No. 15/2011/ND-CP of February 16, 2011, on issuance and management of government guarantee; and Decree No. 15/2015/ND-CP of February 14, 2015, on investment in the form of public-private partnership.

3. The following regulations shall be annulled from the effective date of this Decree:

a/ Clause 6, Article 64 of the Government’s Decree No. 38/2013/ND-CP of April 23, 2013, on management and use of official development assistance loans and concessional loans of donors;

b/ Clause 4, Article 49 of the Government’s Decree No. 01/2011/ND-CP of January 5, 2011, on issuance of government bonds, government-guaranteed bonds and municipal bonds;

c/ Clause 6, Article 2; Point b, Clause 1, Article 4; and Point c, Clause 6, Article 10, of the Government’s Decree No. 15/2011/ND-CP of February 16, 2011, on issuance and management of government guarantee.-

On behalf of the Government

Prime Minister

NGUYEN TAN DUNG